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Greetings, Court Fans!

The annual June deluge has commenced, with four new opinions yesterday: Azar v. Secretary of Health and Human Services (No. 17-1484), holding that the Government violated its statutory obligation to provide notice and a 60-day comment period when it issued a new rule regarding Medicare payments to hospitals; Taggart v. Lorenzen (No. 18-489), holding that a bankruptcy court may hold a creditor in civil contempt for violating a discharge order if there is “no fair ground of doubt” as to whether the order barred the creditor’s conduct; Fort Bend County v. Davis (No. 18-525), holding that Title VII’s requirement that employees file a “charge” with the Equal Employment Opportunity commission before filing suit is not jurisdictional; and Mont v. United States (No. 17-8995), holding that pretrial detention later credited as time served for a new conviction qualifies as “imprison[ment] in connection with a conviction” and therefore tolls the term of supervised release following a sentence, even when the court makes the tolling calculation after learning whether the time will be credited. We’ll have more on all that as soon as we’re able, but first we need to catch up on last week’s news—which also featured four opinions (one a GVR). Read on for summaries of Box v. Planned Parenthood of Indiana and Kentucky (No. 18-483), upholding a law regulating the disposition of fetal remains, Nieves v. Bartlett (No. 17-1174), on the standard for First Amendment retaliatory arrest claims in the face of probable cause, Home Depot USA v. Jackson (No. 17-1417), on the application of the Class Action Fairness Act to third-party counterclaims, and Smith v. Berryhill (No. 17-1417), on judicial review Social Security determinations.

Court-watchers have had an eye on the petition in Box v. Planned Parenthood for quite some time. Before the Court acted on it last week, it had been pending, and relisted, at fourteen conferences over the course of six months. The petition presented asked the Court to review a Seventh Circuit decision invalidating two new provisions of Indiana law—the first relating to the disposition of fetal remains by abortion providers and the second barring the knowing provision of sex-, race-, or disability-selective abortions. With respect to the first question, the Court summarily reversed the Seventh Circuit in a brief per curiam opinion joined by the more conservative justices, plus Breyer and Kagan. The Court pointed out that Planned Parenthood had never argued that Indiana’s fetal-remains law created an undue burden on a woman’s right to choose. Instead, it assumed that no fundamental right was implicated, but argued that the statute nevertheless failed even rational-basis review. But the Supreme Court had already acknowledged in Akron v. Akron Center for Reproductive Health (1983) that a State has a “legitimate interest in proper disposal of fetal remains.” “The Seventh Circuit clearly erred in failing to recognize that interest as a permissible basis for Indiana’s abortion law,” the Court held, noting that the Indiana statute was rationally related to that legitimate interest, even if not perfectly tailored to that end. Though the Court reversed the Seventh Circuit’s judgment based on rational-basis review, it expressed no view on whether the fetal-remains provision would survive a challenge under the undue-burden standard that is generally employed in cases involving abortion rights. The Court also expressed no view on the second question, i.e. whether Indiana may prohibit the knowing provision of sex-, race-, and disability-selective abortions. Because only the Seventh Circuit has thus far addressed such a law, the Court decided to “follow [its] ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.”

Justice Ginsburg and Sotomayor would have denied cert on both questions. Sotomayor did not explain her vote, but Ginsburg wrote a brief opinion arguing that it was improper to summarily reverse the Seventh Circuit’s judgment “when application of the proper standard would likely yield restoration of the judgment.” In other words, Justice Ginsburg agreed that the rational-basis test was inappropriate (though she dropped a footnote seeming to agree with the Seventh Circuit that the law was irrational), but believed that it would fall under the undue-burden test. Therefore, she deemed it a “waste of the Court’s resources to take up a case simply to say we are bound by a party’s strategic litigation choice to invoke rational-basis review alone.”

Justice Thomas also wrote separately, and his opinion has gotten a fair amount of attention. He agreed with the per curiam opinion that the Seventh Circuit’s decision on the fetal-remains provision “was manifestly inconsistent with our precedent,” but wrote separately to address the second question, regarding sex-, race-, and disability-selective abortion. Laws banning abortions for solely those reasons, Thomas argued, “promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” Thomas proceeded to lay out his case that “[t]he foundations for legalizing abortion in America were laid during the early 20^th-century birth-control movement, which “developed alongside the American eugenics movement.” Although he agreed with the Court’s decision to allow these issues to “percolate” in other circuits, Justice Thomas warned that “we cannot avoid them forever.” To that end, his concurrence seems designed to make out the case that the state’s interest in prohibiting abortion for eugenic purposes is “compelling” and could therefore trump the right to abortion recognized in Roe and Casey, even if it imposes an undue burden on a woman’s right to choose.

Turning to argued cases, in Nieves v. Bartlett (No. 17-1174), the Court (finally) determined whether the existence of probable cause for an arrest necessarily defeats a retaliatory-arrest claim. As you may recall, this was a question the Court was poised to answer last year, in Lozman v. Riviera Beach (2018). But the Court decided that that case (involving repeat SCOTUS plaintiff and thorn in Riviera Beach’s side, Fane Lozman) was so unique that it did not provide an adequate vehicle for deciding the broader question. It wasn’t long, however, before that vehicle arrived, driven by a rowdy Alaskan named Russell Bartlett.

Bartlett was arrested in 2014 while attending the Arctic Man festival near Paxson Alaska. Arctic Man, in the Court’s words, “is an event known for both extreme sports and extreme alcohol consumption.” Bartlett may have been engaged in one of these activities on the final night of the festival, when he encountered Sergeant Luis Nieves and Trooper Bryce Weight. By Nieves’s account, he first encountered Bartlett around 1:30 a.m., when Bartlett began belligerently yelling at other partygoers not to talk to the police. Several minutes later, Bartlett saw Weight asking a minor whether he had had been drinking and (according to Weight) Bartlett approached in an aggressive manner, again belligerently yelling (with slurred speech) that Weight should not speak with the minor. Weight claimed that Bartlett stepped very close to him, in a combative way, so he pushed him back. At that point, Nieves rushed over and initiated an arrest, and “when Bartlett was slow to comply with his orders, the officers forced him to the ground and threatened to tase him.” Bartlett, of course, had a different memory of the evening. He denied being aggressive or intoxicated at any time, and claimed that he only stood close to Weight so as to make himself heard over the loud background music. And he was “slow to comply,” not because he was resisting arrest, but because he did not want to aggravate a back injury. By Bartlett’s account, he was arrested in retaliation for his First Amendment rights—namely, encouraging others not to speak with the police. Indeed, he claimed in an affidavit that, after he was handcuffed, Nieves said, “[B]et you wish you would have talked to me now.” In any event, the State ultimately dismissed the criminal chares against Bartlett, who then sued under Section 1983 for retaliatory arrest in violation of the First Amendment. The officers moved for summary judgment, arguing that they had probable cause to arrest Bartlett and that the existence of probable cause precluded a retaliatory arrest claim. The District Court agreed, and dismissed the case, but the Ninth Circuit reversed, holding that a plaintiff can make out a retaliatory arrest claim in the face of probable cause if he shows that the officers’ conduct would “chill a person of ordinary firmness from future First Amendment activity” and amasses sufficient evidence to “enable him ultimately to prove that the officers’ desire to chill his speech was a but-for cause” of the arrest.

The Supreme Court reversed right back, in an opinion by the Chief Justice Roberts, joined by Breyer, Alito, Kagan, Kavanaugh and (in part) Thomas. The Chief began by explaining the difficultly posed by retaliatory-arrest cases. To prevail on a First Amendment retaliation claim, a plaintiff must show not only that the official acted with a retaliatory motive, but that the motive was a “but-for” cause of the plaintiff’s injury. While that causal connection is easily established in some cases, it’s not so simple in cases alleging retaliatory arrest or prosecution. The Court has already explained, in Hartman v. Moore (2006), that the causal inquiry in a retaliatory-prosecution case is particularly complex because the official alleged to have the retaliatory motive does not actually carry out the retaliatory action, himself. Instead, the decision to bring charges is made by a prosecutor (who is generally immune from suit and whose decisions receive a presumption of regularity). To accounted for this “problem of causation,” the Court in Hartman required that plaintiffs in retaliatory-arrest cases prove as a threshold matter that the decision to press charges was objectively unreasonable because it was not supported by probable cause. In the Chief’s view, retaliatory-arrest claims involve similar problems of causation and therefore require the same threshold no-probable-cause requirement should apply. As the Chief explained, the causal inquiry is complex because “protected speech is often a wholly legitimate consideration for officers when deciding whether to make an arrest.” But evidence of the presence or absence of probable cause should be available in every case. Is absence will generally suggest that the but-cause of the arrest was retaliatory animus, whereas its presence will suggest the opposite. While the Chief acknowledged that the same “presumption of regularity” does not apply with respect to arrest decisions, he insisted that the ultimate causation problem is the same in retaliatory arrest and prosecution claims, and that the best solution is to require an absence of probable cause in each context.

Although probable cause should generally defeat a retaliatory-arrest claim, the majority recognized “a narrow qualification . . . for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so.” An unyielding requirement to show the absence of probable cause in these types of cases “could pose a risk that some police officers may exploit the arrest power as a means of suppressing speech.” Thus, the Court held, the no-probable-cause requirement will not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been. Because this is an objective injury, “the statements and motivations of the particular arresting officers are irrelevant at this stage.” (Justice Thomas, who concurred in the judgment and in most of the Chief’s opinion, refused to join this portion, believing that probable cause defeats all retaliatory-arrest claims.) Strangely, having carved out that exception, the Chief did not explain why Bartlett’s claim did not fit within it. The Court concluded that Bartlett could not state a claim because there was probable cause to arrest him and reversed the Ninth Circuit’s judgment.

Justice Gorsuch filed a solo opinion concurring in part and dissenting in part. As he pointed out, Section 1983 itself contains no reference to the presence or absence o probable cause as a precondition or defense to any suit. While it might make sense to graft a no-probable-cause requirement onto the statute, “[o]ur job isn’t to write or revise legislative policy but to apply it faithfully.” He therefore saw no basis in concluding that the absence of probable cause is always required to pursue a retaliatory-arrest claim (particularly when, as he observed, “criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something”). However, Gorsuch agreed that the presence or absence of probable cause is at least relevant to the analysis of First Amendment retaliatory arrest claims (just as it may be relevant to Fourteenth Amendment discriminatory arrest claims). For one thing, he agreed that it has a bearing on the causation requirement. Besides that, Justice Gorsuch noted that the presence or absence of probable cause could play a role in light of the separation of powers and federalism. Because the decision whether to institute criminal charges rests with the Executive Branch, Justice Gorsuch suggested that a “clear evidence” rule might be appropriate in these cases, much in the same way clear evidence of a discriminatory motive is required in discriminatory-arrest claims under the Fourteenth Amendment. Gorsuch therefore concurred with the majority insofar as it concluded “that the absence of probable cause is not an absolute requirement of [a retaliatory arrest] and its presence is not an absolute defense.” As for whether a specific test along the lines of a clear-evidence rule should be applied, Gorsuch would reserve decision until those questions are properly presented to the Court.

Justice Ginsburg also concurred in the judgment in part and dissented in part. Like Justice Gorsuch, she voiced concern about the possibility that, “[g]iven the array of laws prescribing, e.g., breach of the peace, disorderly conduct, obstructing public ways, failure to comply with a peace officer’s instruction, and loitering, police may justify an arrest as based on probable cause when the arrest was in fact prompted by a retaliatory motive.” In her view, the proper balance is to require the plaintiff to bear the burden of demonstrating that unconstitutional animus was “a motivating factor” for an adverse action, and then have the burden shift to the defendant to demonstrate that “even without any impetus to retaliate, the defendant would have taken the action complained of.” Applying her test in this case, she would reverse the Ninth Circuit with respect to Trooper Weight but expressed equivocation with respect to Sergeant Nieves. At bottom, however, she “would not use this thin case to state a rule that will leave press members and others exercising First Amendment rights with little protection against police suppression of their speech.”

Justice Sotomayor was the lone dissenter. As she pointed out, eight justices (all but Thomas) agreed that probable cause alone does not necessarily defeat a First Amendment retaliatory-arrest claim under Section 1983. She agreed with that conclusion, but lamented that “a slimmer majority of the Court chooses not to stop there, but instead to announce a rule “that a showing of probable cause will defeat a §1983 First Amendment retaliatory arrest claim unless the person arrested happens to be able to show that ‘otherwise similarly situated individuals’ whose speech differed were not arrested. In Sotomayor’s view, there is no constitutional or statutory basis for imposing such a requirement. Rejecting the majority’s assumption that retaliatory-arrest claims involve uniquely difficult causation problems, Sotomayor would simply apply “the well-established, carefully calibrated standards that govern First Amendment retaliation claims in other contexts.”

And so, after many years wringing its hands and waiting for the proper vehicle, the Court has finally articulated a crisp standard for assessing retaliatory arrest claims, across five separate opinions. Good luck, lower courts!

Another case that got a fair amount of attention last week is Home Depot USA, Inc. v. Jackson (No. 17-1471), where Justice Thomas, joined by the Court’s liberal justices, held that third-party counterclaim defendants generally cannot remove counterclaims filed against them to federal court. The outcome is noteworthy on its own, because it provides a procedural vehicle for prospective class-action plaintiffs to ensure their claims will be litigated in state court. But most of the commentary has focused on Justice Thomas’s parting with the conservatives in a decision that ultimately works to the detriment of class-action defendants. While his short opinion does not fully explain his difference of opinion with his fellow conservatives, many commentators have seen his vote as an example that justices, like Justice Thomas, who espouse strictly textualist approaches to statutory interpretation will sometimes reach surprising results, where the best reading of a statute’s text requires them to adopt interpretations they may not be sympathetic to as a matter of policy. 

As you no doubt recall from law school, federal courts are courts of limited jurisdiction, with jurisdiction only over certain statutorily defined categories of cases. Congress has also enacted several “removal” statutes, which allow a party sued in state court to remove the case to federal court when it could have been filed there in the first place. In 2016, Citibank filed a debt-collection action against Jackson in North Carolina state court, based on his failure to pay charges on his Home Depot credit card. Jackson responded by filing class-action claims against a third party, Home Depot, alleging that it had induced him (and a great many others) to buy water treatment systems at inflated prices. Home Depot tried to remove the case to federal court, but the lower federal courts remanded it back to state court, concluding that a third-party counterclaim defendant like Home Depot could not take advantage of any of the federal removal statutes. The Court granted cert to address removal in these circumstances.

Justice Thomas’s majority opinion, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, began with the general removal statute, 28 U.S.C. § 1441(a). It provides that “any civil action brought in a State court” over which the federal courts would have had original jurisdiction (a category that includes this case, all assumed) “may be removed by the defendant or the defendants” to federal district court. While the majority agreed with Home Depot (and the dissent) that it was “plausible” to interpret “defendant” as including third-party counter-claim defendants, Justice Thomas concluded this was not the best reading given the statute’s overall context. Several provisions, and the Court’s precedent in related contexts, limited “defendant” to the defendant in the original lawsuit, not parties brought into the suit (including third parties, like Home Depot) only through the filing of counterclaims.

The majority reached the same result under the specific removal statute of the Class Action Fairness Act (CAFA), 28 U.S.C. § 1453(b). This was a “closer question,” because CAFA’s removal statute permits removal by “any defendant” to a “class action,” a term that seemed to describe a party like Home Depot (which was, after all, the defendant in Jackson’s class action). But Justice Thomas nonetheless concluded this “any defendant” phrase was not intended to reach counterclaim defendants. Instead, that language simply clarified that certain limitations on removal that might otherwise apply, like the need to obtain consent to remove from the other defendants, are inapplicable to CAFA removal.

Justice Alito, joined by the Chief and Justices Gorsuch and Kavanaugh, penned a lengthy dissent, one more than twice as long as the majority’s opinion. He focused on the basic purpose of removal statutes: they allow out-of-state defendants who have been sued in possibly hostile and biased state courts to remove cases to the theoretically more neutral forum of federal court. Given that purpose, the dissenters saw no reason why Congress would have intended to treat third-party counterclaim defendants differently than original defendants: both are being sued against their will in an unfavorable forum and have good reason to try to move the case to federal court. The dissenters thought this was particularly so for CAFA, which was enacted in part to end several procedural tricks used by plaintiffs’ lawyers to defeat removal. In their view, the majority’s distinction between third-party counterclaim defendants and original defendants simply codified one of these tricks, allowing plaintiffs who wish to have class-action claims adjudicated in a state court to avoid any risk of federal removal simply by waiting until they can assert their class claims as third-party claims. (Although that sounds rare, debt-collection actions like this one provide an easy vehicle for doing so.) And Justice Alito did not rely merely on the legislative purpose; instead, he found ample reason to conclude that the raw language of the removal statutes was best read as drawing no distinction between counterclaim and original defendants.

Finally, in Smith v. Berryhill (No. 17-1606), a unanimous Court held that a decision by the Social Security Administration’s (SSA) Appeals Council dismissing an appeal as untimely is a “final decision” subject to judicial review.

The Social Security Act allows for judicial review of “any final decision . . . made after a hearing” by the SSA. The SSA’s current regulatory framework provides a four-step process getting to a final agency decision: On an application, the Agency will first make an initial-determination as to eligibility. The claimant can then seek reconsideration. If that is unsuccessful, the claimant can demand a hearing before an ALJ. From there, claimants can appeal the ALJ’s decision to the SSA’s Appeals Council. Ricky Lee Smith went through the first three steps. But when he got to the fourth, his letter initiating an appeal was lost, and by the time he corrected the problem, the deadline to appeal had lapsed. The Appeals Council therefore dismissed his appeal as untimely. When Smith sought judicial review of the Agency’s decision in federal court, a district court and then the Sixth Circuit held that the Appeals Council’s decision to not consider an untimely petition for review was not a final decision subject to judicial review. Smith sought certiorari. And the government then had a change of heart: It urged the Court to take the case, arguing that although the Sixth Circuit’s holding agreed with the government’s views in prior cases, it had now reconsidered and believed the specific decision at issue was reviewable. The Court granted cert and then appointed amicus curiae to defend the lower court’s judgment.

Justice Sotomayor’s majority quickly concluded that a decision by the SSA Appeals Council dismissing a petition seeking review of an ALJ’s merits decision counts as a “final decision made after a hearing. First, the decision was “final” because it was the end of the road for Smith’s application for benefits. Second, it was after a “hearing,” namely the merits hearing before the ALJ. Third, finding the Appeals Council’s decision reviewable was consistent with the general principles of administrative law, namely the “strong presumption” that Congress intends judicial review of administrative agencies’ actions. Finally, and perhaps most consequential for other contexts, the Court rejected the amicus’s argument that the Court must give Chevron deference to the Agency’s long-standing (though now abandoned) view that appeals dismissed for untimeliness are unreviewable. This question—whether the federal courts had statutory authority to review an agency’s decision—is simply not the type of thing the Court would presume Congress had intended to delegate to an agency, and so the agency’s views on that question were entitled to no deference.  

Although Smith won this battle, the Court concluded its opinion by clarifying what awaits on remand. On remand, the federal courts should consider whether the Appeals Council rightly dismissed Smith’s appeal for untimeliness. But, disagreeing with Smith, the Court concluded that if Smith’s SSA appeal was wrongly dismissed, the next step was not to consider the merits of the ALJ’s decision but instead to remand his challenge to the Appeals Council to then decide it in the first instance. Only after it had done so could the federal courts consider the merits of Smith’s entitlement to social security benefits.

That brings us up to speed on opinions as of 10:00 yesterday morning. We’ll be back soon with summaries of this week’s cases. But before we go, thanks to all of you who came out for our Supreme Court “mid-term” review last week and thanks, especially to our guest panelists Kate Stith and Stephen Gilles. We’ll see in the coming weeks whether all our crack predictions come true…

Until later,

Tadhg and Dave